California Proposition 8 Unconstitutional?

Could the courts overturn California's Proposition 8 that bans marriage equality...

Legality of Same-Sex Marriage Ban Challenged

By Ashley Surdin
Washington Post Staff Writer
Tuesday, November 11, 2008; Page A02

LOS ANGELES -- The future of same-sex marriage in the Golden State will rest, once again, in the hands of its highest court. But this time, its fate will hinge on a different question: Can a state constitutional ban on same-sex marriage go before voters? Or must it go before the legislature first?
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"In passing Prop 8, the people of California basically put an asterisk next to the equal protection clause in the constitution," said William Araiza, a professor at Loyola Law School in Los Angeles. Now, he said, "it fundamentally comes down to whether the court considers this a major change or not a major change."

Specifically, opponents of Proposition 8 argue that this kind of change is a "revision," not an "amendment." The distinction is important, legal experts say, because revisions require two-thirds approval in the legislature and then a popular vote. Amendments can be approved by popular vote only.

If, as opponents say, the court finds that Proposition 8 qualifies as a revision, then the proposition would be found unconstitutional because its proponents would have, in effect, skipped the required legislative step. If the court strikes down the initiative on these grounds, it is not certain the lawmakers would take up the issue again.